Articles Posted inTRCP

I frequently see parties involved in litigation who are furious at the other side for the things they have asked for in their paperwork. Most often this comes up in family law cases when children are involved and one side is asking the court to exclude one party from seeing the child or to severely limit access to the child in some other way like supervised possession. But it happens in more tame situations as well. A request for spousal maintenance or a reimbursement claim can set people off. It can also happen in non-family cases. In civil cases, people are often outraged at the amount of money the other party is claiming they are owed. A request for attorney’s fees in any type of case can be upsetting.

It’s the law’s fault.

The problem is that the law requires a party to a suit to list everything it wants in its pleadings filed with the court. To put it simply, if you don’t ask for it, you can’t get it. Rule 47 of the Texas Rules of Civil Procedure outlines what must be pled for in a civil suit, and section 102.008 of the Texas Family Code does the same for a family law suit. If you want something, or even if you think you might want something depending on information obtained during the lawsuit, you have to ask the court for it in the pleadings.

You have been served with a Petition for Divorce or any family law petition by either a private process server or constable and you wonder what to do at this point. You have never been through something like this before and you do not know when or if you even need to respond. But, if you were served with anything you must file a response. You cannot allow the case to proceed forward without your response because if you do, you will be setting yourself up for failure. In not filing a response, the other party can secure what is called a “default judgment” against you. If they do this, that means that the judge can entertain and sign any order that the other party presents to the court without further notice to you. You definitely do not want this to happen in a family law case because unfortunately there will not be anything to reverse that awful one-sided order once it is entered because you had ample notice to participate once you were served.

So, to avoid that catastrophe it is important that you, at the very least, file what is called a “general denial” or what some people call an “answer.” This puts the court on notice that you have received the petition (though they will also see that in the return of service filed after your service by the process server and constable) and that you are contesting the case. Therefore, if any additional actions are taken in the case like a hearing or order presented to the court you will be entitled to notice before any of that can occur.